SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. VOLLMERS NEW YORK CENT. R. CO.* 1. WORK MEN'S COMPENSATION-RIGHT TO COMPENSATION -INTERSTATE COMMERCE. In determining whether an employee of an interstate carrier is entitled to compensation under the Workmen's Compensation Law, the true test is whether his work was a part of the interstate commerce of the carrier. 2. WORKMEN'S COMPENSATION-INTERSTATE COMMERCE. Plumber, employed in the maintenance of ways department of an interstate carrier, engaged in repairing pipes in a station, and was killed by a train while crossing tracks in the course of his employment, was entitled to no compensation under the Workmen's Compensation Law, since he was engaged in interstate commerce. Kellogg, P. J., and Lyon, J,. dissenting. Appeal from State Industrial Commission. Application by Ethel H. Vollmers for compensation for herself and children on account of the death of Conrad H. Vollmers, employee opposed by the New York Central Railroad Company, employer and selfFrom an award of the Industrial Commission, the employer appeals. Reversed, and claim dismissed. insurer. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Visscher, Whalen & Austin, of Albany, for Appellant. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, Counsel to Commission (E. C. Aiken. Deputy Atty. Gen., of counsel), for Respondent. WOODWARD, J. There is only one question involved in this appeal and that is whether Conrad H. Vollmers was engaged in interstate commerce at the time he was run over and killed at Hillsdale, on the Harlem branch of the New York Central Railroad Company. There is no doubt that the New York Central Railroad Company, as now organized, is engaged in interstate commerce generally, and, of course, its Harlem division is a part of the general system. Voll mers was a partment of the New York Central Railroad Company, and had plumber, employed in the maintenance of ways debeen so employed for a period of two years, and the general scope of his employment would seem to suggest that he was engaged in interstate commerce operations. [1] The true test is, "Is the work in question a part of the interstate commerce in which the carrier is engaged?" say the *Decision rendered. Nov. 14. 1917. 167 N. Y. Supp. 426. Vol. I-Comp. 17. court in Pederson vs. D., L. & W. R. R., 229 U. S. 146, 152, 33 Sup. Ct. 648, 650 (57 L. Ed. 1125, Ann. Cas. 1914C, 153), and then adds: "Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such." See N. Y. Central R. R. Co. vs. White, 243 U. S. 188, 192, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1. [2] Vollmers was an employee in the maintenance of ways department of an interstate railroad, and he was engaged at the time in the inspecting and repairing of pipes, which constituted a part of the plumbing apparatus beneath the station, and while thus employed he had occasion to cross the tracks in front of the station, and was struck by an engine and killed. The fact is found that his crossing of the tracks was in connection with his employment. It seems clear, under the rule prevailing in the Supreme Court of the United States, that Vollmers was engaged in the maintenance of an instrumentality of interstate commerce; he was doing the work necessarily involved in the maintenance of ways department. The stations actually in use in the carrying on of interstate commerce are clearly instrumentalities of such commerce, and it is necessary to their proper maintenance that the plumbing should be kept in repair. The position of Vollmers was not merely of a plumber called on to do an incidental job; he was in the employ of a department of the corporation devoted, not to the construction, but to the maintenance of ways, and this required him to be in and about the railroad properties generally, during such repairs as were needed whether in the station houses or outside of them. To say that such a man, identified with a department for the particular purpose, is not engaged in interstate commerce is to ignore the facts and the rulings of law made by the courts of last resort, and may not be sustained. The award should be reversed, and the claim dismissed. Cochrane and Sewell, JJ., concur. Kellogg, P. J., and Lyon, J., dissent. SUPREME COURT OF NEW YORK. REDNER VS. H. C. FABER & SON. IN RE FRANKFORT GENERAL INS. CO.* WORKMEN'S COMPENSATION-INJURY "ARISING OUT OF EMPLOYMENT." Injury to employee, who worked sometimes in one building and sometimes in another, on opposite sides of the street, in going from work in one to work in the other by slipping on ice in street. which highway was part of the place provided him to work in, arises out of his employment within the Workmen's Compensation Act. Appeal from State Industria! Commission. Claim of Georgiana Alice Redner, widow of Charles W. Redner, deceased, againsts H. C. Faber & Son, employer, and the Frankfort General Insurance Company, for compensation under the Workmen's Compensation Law. From an award of the State Industrial Commission in favor of claimant, the employer and insurer appeal. Affirmed. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Ainsworth, Carlisle & Sullivan, of Albany (Charles B. Sullivan, of Albany, of counsel), for Appellant. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, Counsel to the Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for Respondent. WOODWARD, J. There is but one question to be decided upon this appeal from an award of the State Industrial Commission. H. C. Faber & Son Company is a corporation engaged in manufacturing commercial trunks, with its factory located on Meadow street, Utica. Diagonally across this street the A. W. Winship Company, a second corporation, is engaged in the manufacture of personal and are carried on by a single executive organization. The Faber trunks. Both corporations are owned by the same stockholders Company had in its employ a general utility man, the claimant's husband, who performed services for both corporations. Among his duties was the work of lettering trunks. On the 20th day of January, 1916, he was directed by the superintendent of the Faber Company to go across to the Winship factory and to there letter to the Winship factory, where he performed the service, and a trunk. For this purpose Redner left the Faber factory and went started to return to the Faber factory. When he had reached a Decision rendered. Nov. 14. 1917. 167 N. Y. Supp. 242. point near the curb line, in front of the Faber factory, he slipped upon the snow and ice in the street, and received injuries from which, in connection with other complications, he died some six months later. The point urged upon this appeal is that, the fall having occurred in a public highway, the injury was not one "arising out of" Redner's employment; that it was merely a street accident, to which every one using the highway was equally liable. It must be admitted that there are English authorities which seem to sustain this contention, and some of our own cases have refused to sustain awards where the accidents have occurred in the highways after the termination of the hours of employment; but we think none of them have gone to the extent we are asked to go in the present case. The evidence indicates that, while the location of the accident was technically a public highway, it was in fact practically a part of the premises of these two corporations; it was not generally used for street purposes. The presumption would be, in the case of an ordinary highway, that the fee vested in the abutting owners, subject to the easement for public passage, and that the owners of the fee had a right to make any use of such highway consistent with the public use, so that the determining factor is, not whether the accident occurred in a public highway, but whether the employee was there in the performance of his duties. If he was there in the discharge of the obligations of his employment, the accident would arise out of such employment as certainly as though he had reached a point within the factory and had there slipped and sustained his injuries. This highway was a part of the place provided for him to work in, and even at common law it was probably the duty of the Faber Company to use reasonable care to see that this place was reasonably safe for the purpose to which it was devoting the street, and we are fully persuaded that, under the circumstances here disclosed, it was a matter of absolute indifference who owned or controlled the highway. It was necessary for the decedent to cross this highway in doing the work appointed as it was for him to cross the room in which he was employed in the factory, and the liability would clearly extend to him if injured in either case while actually employed. While it may be true that the Workmen's Compensation Law was primarily designed to compensate for the real tragedies inherently involved in the so-called hazardous occupations, our courts have gone too far in sustaining those awards to now hold that only such accidents are covered as arise out of the special hazards of the business. If the general scope of the business in which the injured party is employed, so that he is subjected to the risks incident to such business, is within the statute, then the protection is extended to him throughout the course of such employment, even though the particular accident was not such as to come within the major employment, and whether such an injury occurs in the street in front of the employer's premises, made use of for such employment, or in the factory building itself, can make no difference in the application of the law. The award should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. IN RE SUGG. SUGG VS. ERIE R. CO.* WORKMEN'S COMPENSATION—AWARD. Under the Workmen's Compensation Law, § 15, subd. 3, prior to its amendment in 1916 compensation could not be awarded for permanent loss of use of a finger as for the loss of the finger, but only 66 2-3 per cent of the difference between the weekly wages and the wage-earning capacity after the accident, not exceeding the compensation for loss of finger. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law by Joseph E. Sugg to obtain compensation for personal injuries, opposed by the Erie and the employer appeals. Reversed and remitted. Railroad Company, employer. Compensation was awarded the claimant, Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Buffalo, of counsel), for Appellant. counsel), for State Industrial Commission. COCHRANE, J. The claimant was injured May 5, 1916. The finding of the commission is that: "The index finger of his right hand became infected and resulted in an ankylosis, thereby causing a permanent loss of use of that finger." On this finding the employee for a period of forty-six weeks, "for the equivalent commission of 66/3 per centum of the average weekly wages of an award of compensation was made by the There is no evidence supporting the finding that the claimant has No witness was examined on the hearing before the commission. *Decision rendered, Nov. 14, 1917. 167 N. Y. Supp. 390. |